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Louisiana Litigators: While People Leave the Pelican State, Attorneys Thrive

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Louisiana Litigators: While People Leave the Pelican State, Attorneys Thrive

By James R. Copland December 1, 2008
Legal ReformOther

The troubled state of Louisiana has lost 200,000 residents in the years since Hurricane Katrina devastated New Orleans.[1] But the state had been having a hard time attracting workers and others, as well as holding on to those it had, even before the hurricane struck. While the national trend in population growth in the previous five years was 4.6 percent, Louisiana grew by only 0.6 percent in that period.[2] Even so, one segment of the population—trial lawyers—is finding the state to be an excellent place to hang out and do business. Long a lawsuit-friendly jurisdiction, Louisiana has become a magnet for mass tort lawyers squeezed by comprehensive tort reform in neighboring states such as Texas and Mississippi.

That plaintiffs' lawyers would find the Bayou State a good place to sue is unsurprising. In a 2008 survey conducted by Harris Interactive for the U.S. Chamber of Commerce Institute for Legal Reform, corporate litigators ranked the fairness of Louisiana's judicial system next-to-last among the fifty states.[3] The state ranked among the bottom three in every category surveyed, and Louisiana was deemed the worst state in the nation in its treatment of scientific and technical evidence, its timeliness in granting or denying summary judgment or dismissal, its discovery process, and its judges' competence. Orleans Parish, encompassing the city of New Orleans, has regularly been dubbed a "judicial hellhole" by the American Tort Reform Association,[4] and it was ranked the ninth-worst local jurisdiction in the country.[5]

Louisiana's hospitability to litigation is an impediment to its economic recovery: 64 percent of business leaders around the country surveyed by Harris said that a state's litigation climate would affect their decision on where to locate a business.[6] If Louisiana's leaders want to resuscitate their state's fortunes, then cleaning up its system of civil justice would be a good place to start.

A UNIQUE LEGAL SYSTEM

Owing to its pre-1803 history as a French colony, Louisiana—alone among the fifty states—has a French-derived "civil law" tradition rather than a British-derived system of "common law."[7] Consequently, all causes of action in Louisiana are based in the Louisiana Civil Code[8]; in theory, at least, Louisiana's judges do not make law. Unfortunately, Louisiana's exceptionality does not extend to European-style constraints on litigation, such as "loser pays" fee-shifting rules and prohibitions against contingent fees and class actions.

In contrast to judges in common-law states, who typically show substantial deference to previous court decisions, Louisiana's judges are supposed to work from a "direct interpretation" of the code.[9] While such a legal approach would seem to support legislative supremacy and judicial restraint, open-ended or ambiguous statutes have invited a wider scope of judicial interpretation and disregard for judicial predecessors' rulings.

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